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Wells v. Berryhill

United States District Court, D. Kansas

January 19, 2018

TREVOR JAMES WELLS, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding the Administrative Law Judge's (ALJ) decision is not supported by the record evidence and is inadequately explained, the court ORDERS that the decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this decision.

         I. Background

         Plaintiff applied for DIB and SSI benefits, alleging disability beginning November 1, 2012. (R. 14, 184, 192). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the ALJ erred in failing to consider the work questionnaire completed by a former employer, that the residual functional capacity (RFC) assessed by the ALJ is unsupported by the record evidence, and that the ALJ erred at step five of the sequential evaluation process by failing to resolve conflicts between the RFC assessed and the representative jobs testified by the vocational expert (VE).

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

         The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

         The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

         The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

         The court finds that remand is necessary because the ALJ's decision is not supported by the record evidence. The court notes that when viewing each of the alleged errors separately and narrowly, it might find a basis in the record evidence to support the findings of the ALJ. But, that approach ignores the evidence which detracts from the ALJ's decision, and ignores that the ALJ failed to discuss or explain why that particular evidence does not compel a different decision. Therefore, in this opinion the court takes a different tack from its usual practice in Social Security disability cases, and after looking at the ALJ's decision, considers the evidence which was not discussed in that decision, and explains why remand is necessary for the Commissioner to account for that evidence and explain why it does not compel a different decision in this case.

         II. Discussion

         Here, the ALJ found that Plaintiff has a severe combination of impairments of bipolar disorder, depression, anxiety, narcissistic personality, and substance abuse, but that his impairments do not meet or medically equal any listed impairment. (R. 16-17). He assessed Plaintiff with the RFC for a range of work at all exertional levels with certain nonexertional limitations requiring that he never climb ladders, ropes, or scaffolds; he avoid concentrated exposure to unprotected heights and moderate exposure to hazardous machinery; and that he is limited to unskilled work with occasional contact with the general public and co-workers, and may not work in high production rate jobs. (R. 18). In reaching this RFC assessment, the ALJ summarized the record evidence, including Plaintiff's allegations, the medical evidence, and the opinion evidence. Id. at 18-23.

         The ALJ found Plaintiff's allegations of disabling symptoms resulting from his impairments “not entirely credible” (R. 20), and Plaintiff does not allege error in that determination. He afforded weight to Dr. Brewington's opinion that “mood-stabilizing medication will help [Plaintiff] focus.” (R. 22). He afforded little weight to the opinions of Ms. Simpson, the social worker who treated Plaintiff's mental impairments, stating that she was not an “acceptable medical source, ” that her limitations were not consistent with Plaintiff's “ability to perform normal daily functions, that his condition improves with medication management, that Plaintiff stated in his treatment notes that he was “not depressed just stressed over situations in his life.” (R. 22). He also noted that “Ms. Simpson has been a long-time proponent of the claimant's disability application and has actively encouraged the claimant to pursue disability instead of finding employment.” Id. The ALJ afforded significant weight to the opinions of the state agency psychological consultants because the consultants reviewed the entire record and are familiar with the agency's evidentiary requirements. He found the consultant's opinions consistent with Plaintiff's level of daily activities, with the fact that Plaintiff is making good progress, and with Plaintiff's performance on mental status examinations. Id. He afforded some weight to Plaintiff's mother's opinion that Plaintiff has some difficulty maintaining social relationships because the opinion is consistent with Plaintiff's statements and with the treatment records. Finally, the ALJ afforded only little weight to the global assessment of functioning (GAF) scores in the record ranging from 20 to 55. Id. at 22-23. He discounted the GAF scores because they are not function-by-function assessments of Plaintiff's mental abilities, they do not measure Plaintiff's ability to meet the mental demands of unskilled work, there is no correlation between GAF scores and the “paragraph B” criteria of the mental impairment listings. Id. at 22. He found that GAF scores are not standardized or designed to predict outcomes, that they are of little legal significance without explanation or supporting detail, and are inconsistent with the medical records showing improvement and a stable mood when Plaintiff is medication compliant. (R. 22-23). He concluded his RFC assessment: “In sum, the above residual functional capacity assessment is supported by the medical evidence of record, the record as a whole, the State agency findings and the claimant's testimony.” (R. 23).

         The ALJ found that Plaintiff is unable to perform his past relevant work as a retail manager because it is skilled work, but based upon the VE's response to hypothetical questions at the hearing, he determined that Plaintiff is able to perform work available in the economy represented by jobs such as a Finishing Operator, a Shuttle Spotter, and a Spool Winder. Id. at 23-24. He concluded that Plaintiff has not been disabled within the meaning of the Act from his alleged date of disability through the date of the decision, July 17, 2015. Id. at 24 . Consequently, he denied Plaintiff's applications. Id.

         A. Arguments Regarding Evidence Not ...


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